As filed with the Securities and Exchange Commission on July
25, 1996
Registration No. 333-___________
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIVERSIFAX, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-
3637458
(State
or other jurisdiction (I.R.S.
employer
of
incorporation or organization)
identification number)
39
Stringham Avenue
Valley Stream, New York
11580
(Address of principal executive offices) (Zip
code)
Employment Agreement, dated March 10, 1995,
among Diversifax Information Services, Inc.,
DiversiFax, Inc. and Mario DiNatale, and
amendment thereto dated as of July 17, 1996
(Full title of the plan)
Irwin A. Horowitz
DIVERSIFAX, INC.
39 Stringham Avenue
Valley Stream, New York 11580
(Name and address of agent for service)
(516) 872-0650
(Telephone number, including area code, of agent
for service)
- copy to -
Gary T. Moomjian, Esq.
Breslow & Walker
875 Third Avenue
New York, New York 10022
(212) 832-1930
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S>
<PAGE>
Title of securities
to be registered
<C>
<PAGE>
Amount to be
registered
<C>
<PAGE>
Proposed maximum
offering price per
share(1)
<C>
<PAGE>
Proposed maximum
aggregate offering
price(1)
<C>
<PAGE>
Amount of
registration
fee(1)<PAGE>
Common Stock,
par value $.001
per share<PAGE>
5,634<PAGE>
$ 4.4375<PAGE>
$25,000<PAGE>
$100<PAGE>
Total Registration Fee. . . . . . . . . . . . . . . . . . . . $100
<FN>
<F1>
(1) The offering price and the amount of the fee have been computed based upon the average of
the bid and asked price of the Common Stock as quoted on NASDAQ on July 19, 1996.
Pursuant to Section 6(b) of the Securities Act of 1933, as amended, the minimum fee of $100
is paid herewith.<PAGE>
</FN>
</TABLE>
PART I
INFORMATION NOT REQUIRED IN THE
REGISTRATION STATEMENT
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF
DOCUMENTS BY REFERENCE.
The following documents of DiversiFax, Inc.
(the "Registrant") heretofore filed with the Securities
and Exchange Commission (the "Commission"), are
hereby incorporated by reference:
(a) The Registrant's Annual Report
filed on Form 10-KSB for the year ended
November 30, 1995, filed pursuant to the
Securities Exchange Act of 1934 (the
"Exchange Act").
(b) The Registrant's Quarterly Report
on Form 10-QSB for the quarter ended May
31, 1996, filed pursuant to the Exchange
Act.
(c) The description of the Registrant's
Common Stock, par value $.001 per share
(the "Common Stock"), as set forth in the
Registrant's Registration Statement of
Securities on Form 8-A, dated December 8,
1992, registered under Section 12(g) of the
Exchange Act.
In addition, all other documents subsequently
filed by the Registrant with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act prior to the filing of a post-effective amendment
which indicates that all the securities offered hereby
have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated
herein by reference and are a part hereof from the date
of the filing of such documents with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS
AND COUNSEL.
The validity of the shares of Common Stock
offered hereby is being passed upon for the Registrant
by Breslow & Walker.
The financial statements of the Registrant, as
of November 30, 1995 and for each of the years in the
two-year period ended November 30, 1995,
incorporated by reference herein and elsewhere in the
Registration Statement have been incorporated by
reference herein and in the Registration Statement in
reliance upon the report of Hoberman, Miller & Co.,
P.C., independent certified public accountants,
incorporated by reference herein, and upon the
authority of said firm as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF
DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General
Corporation Law (the "GCL") the Registrant may or
shall, subject to various exceptions and limitations,
indemnify its directors or officers and may purchase
and maintain insurance therefor.
The Registrant has included in its Certificate
of Incorporation pursuant to Section 102(b)(7) of the
GCL a provision eliminating the personal liability of
directors to the Registrant or its stockholders for
damages for breach of fiduciary duty. The principal
effect of this provision in the Registrant's Certificate of
Incorporation is to eliminate potential monetary
damage actions against any director for breach of his
duties as director except (a) for any breach of the
director's duty of loyalty to the corporation or its
stockholders, (b) for acts or omissions not in good
faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the
GCL, which relates to a willful or negligent violation
of Section 160 (regarding the illegal purchase or
redemption of stock by a corporation) or Section 173
of the GCL (regarding a corporation's illegal
declaration or payment of dividends), or (d) for any
transaction from which the director derived an
improper personal benefit. This provision does not
affect the liability of any director for acts or omissions
occurring prior to the date of adoption of this
provision. In addition, Section 145 of the GCL
empowers a corporation (a) to grant indemnification to
any officer or director where it is determined that he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to
believe his conduct was unlawful and (b) to advance to
an officer or director the expenses of defending claims
upon receipt of his undertaking to repay any amount to
which it is later determined he is not entitled.
The foregoing statement is subject to the
detailed provisions of Sections 102 and 145 of the
GCL.
ITEM 7. EXEMPTION FROM
REGISTRATION CLAIMED.
Not applicable.
<TABLE>
<PAGE>
ITEM 8. EXHIBITS.
<CAPTION>
<S>
Exhibit
<C>
<PAGE>
Description
<C>
<PAGE>
Sequentially
Numbered Page
Where Located
<PAGE>
4(a) Employment Agreement,
dated March 10, 1995,
among Diversifax
Information Services, Inc.,
the Registrant and Mario
DiNatale, and amendment
thereto dated as of July 17,
1996<PAGE>
6 4(b) Certificate of Incorporation,
as amended*<PAGE>
-- 4(c) By-Laws, as amended* -- 5 Opinion of Messrs. Breslow
& Walker, counsel to the
Registrant, as to the legality
of the securities being
registered<PAGE>
15 23(a) Consent of Certified Public
Accountants<PAGE>
16 23(b) Reference is made to Exhibit
5 with respect to the
Consent of Messrs. Breslow
& Walker<PAGE>
--
<FN>
<F1>
* Previously filed with the Registrant's Registration Statement on Form S-1 (No.
33-46580) declared effective by the Commission on November 18, 1992.
</FN>
</TABLE>
ITEM 9. UNDERTAKINGS.
A. Rule 415 offering.
The undersigned Registrant hereby
undertakes:
(1) To file, during any period in
which offers or sales are being made, a post-effective
amendment to this registration statement;
(2) That, for the purpose of
determining any liability under the Securities Act of
1933, each such post effective amendment shall be
deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by
means of a post effective amendment any of the
securities being registered which remain unsold at the
termination of the offering.
B. Filings incorporating subsequent
Exchange Act
documents by reference.
The undersigned Registrant hereby
undertakes that, for purposes of determining any
liability under the Securities Act of 1933 (as amended,
the "Act"), each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act
that is incorporated by reference in the registration
statement shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Filing of registration statement on
Form S-8.
Insofar as indemnification for liabilities
arising under the Act may be permitted to directors,
officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Commission such indemnification is against public
policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities
being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such
issue. <PAGE>
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly
caused this registration statement to be signed on its
behalf by the undersigned,
thereunto duly authorized, in the City of Valley
Stream, and the State of New York on the 22nd day of
July, 1996.
DIVERSIFAX, INC.
By: /s/ Irwin A.
Horowitz
Irwin A.
Horowitz, President
(Principal
Executive, Financial and Accounting Officer)
<TABLE>
<CAPTION>
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement
has been signed by the following persons in the
capacities and on the dates indicated.
<S>
Signature
<C>
<PAGE>
Title
<C>
<PAGE>
Date
<PAGE>
/s/ Irwin A. Horowitz
Irwin A. Horowitz<PAGE>
Director<PAGE>
July 22, 1996<PAGE>
/s/ Eugene Bilotti
Eugene Bilotti <PAGE>
Director<PAGE>
July 22, 1996<PAGE>
/s/ Mario DiNatale
Mario DiNatale <PAGE>
Director<PAGE>
July 22, 1996<PAGE>
/s/ Kenneth Ross Wolfe
Kenneth Ross Wolfe<PAGE>
Director<PAGE>
July 22, 1996<PAGE>
</TABLE>
Exhibit 4(a)
EMPLOYMENT AGREEMENT
This agreement for employment is made this 10th
day of March, 1995, by and among DIVERSIFAX
INFORMATION SERVICES, INC., a New York
corporation ("Employer" or "the Company"),
DIVERSIFAX, INC., a Delaware corporation
("DiversiFax"), and MARIO DiNATALE ("Employee").
For good and valuable consideration, receipt of
which is hereby acknowledged, the Employer shall employ
the Employee subject to the following terms and
conditions:
1. TERM. The term of this agreement shall be
twenty-four (24) months commencing as of the date hereof
and terminating on March 9, 1997 unless otherwise
terminated by the Employer as provided for in the
provisions for termination contained herein.
2. DUTIES. The Employee is engaged as the
President of the Company. The precise services of the
Employee shall be determined from time to time at the sole
discretion of the Employer. The Employee has been elected
by the Board of Directors of the Company. The Employee
shall devote all of his time and energies to the Company
and will not conduct business other than the business of the
Company. The Employee shall devote his time, attention,
knowledge and skills, faithfully and to the best of his
ability, in furtherance of the Company's business and the
duties of his employment pursuant to this agreement.
3. RULES OF EMPLOYMENT. The
Employee shall comply with all stated standards of
performance, policies, rules, regulations and manuals of the
Employer. The Employee acknowledges receipt of all such
present standards of performance, policies, rules,
regulations and manuals. The Employee shall also comply
with such further Employer policies, rules, regulations,
performance standards and manuals as may be published,
amended or in effect from time to time, regardless of
whether such standards, policies, rules, regulations or
manuals are delivered to him.
4. COMPENSATION. The Employer shall pay
to the Employee as compensation for services to the
Company, and the Employee agrees to accept the sum of
$85,000.00 per fiscal year, payable bi-weekly, and a bonus
equal to one (1%) percent of the Employer's gross
revenues in excess of $500,000.00 for the immediately
preceding fiscal year. Regardless of the bonus computation
set forth above, such bonus shall be not less than
$35,000.00 per annum (for a complete year worked), and
shall, at the option of the Employer and DiversiFax, in
their sole and absolute discretion, be paid in DiversiFax
Common Stock, or cash. The value of the Common Stock
of DiversiFax shall be determined by taking the average
daily bid price of the stock as listed on NASDAQ for the
thirty (30) day period immediately preceding the last day of
each twelve (12) month period of employment. The bonus
payment shall be paid no later than sixty (60) days
following the last day of the twelfth month of each fiscal
year of employment. If the Employee commences his
employment during the middle of the fiscal year, bonuses
and any minimum bonuses shall be pro-rated for the
portion of the year during which the Employee worked. If
the Employee's employment is terminated for any reason
during a fiscal year, he shall not be entitled to any bonus
for the partial fiscal year worked. DiversiFax agrees to
continue to pay the Employee the compensation set forth in
this Section "4", but only to the extent that (a) the
Employee agrees to perform services for DiversiFax, or an
affiliate, as directed by DiversiFax's Board of Directors, in
its sole and absolute discretion, and (b) the Employee
enters into an Employment Agreement with DiversiFax
which is satisfactory to DiversiFax, in its sole and absolute
discretion.
5. EXPENSES. The Employee is authorized to
incur reasonable expenses for promoting the business of the
Employer, including expenses for entertainment, travel and
similar items. The Employer will reimburse the Employee
for all such reasonable expenses upon the presentation by
the Employee from time to time, of an account of such
expenditures in form and substance satisfactory to the
Employer.
6. VACATION. The Employee shall be
entitled to a vacation of two (2) weeks, per year, such
vacation to be used within each twelve (12) month period.
7. TERMINATION. This agreement may be
terminated by the Employer upon thirty (30) days written
notice to the Employee upon the occurrence of any one of
the following events:
(a) Any act of fraud, theft or other
criminal conduct by the Employee;
(b) Any act of the Employee detrimental
to the business of the Employer, as determined by the
Employer, in its sole discretion; or
(c) Any breach by the Employee of any
of the covenants or terms of this agreement, as determined
by the Employer, in its sole discretion.
In the event of termination for any of the above
reasons, the Employee only shall be entitled to any moneys
for the compensation (excluding any bonus) accrued to the
Employee through the date of termination, which monies
shall be paid within sixty (60) days of the date of
termination. No other severance shall be due and all rights
and compensation shall cease. The Employer may also
terminate the Employee upon thirty (30) days' written
notice, for any other reason whatsoever, other than as
prescribed above, in which case the Employee shall be
entitled to all amounts owed and outstanding at the time of
termination and severance compensation equal to eight (8)
months of his regular pay (excluding bonuses or any
pro-rated portion of bonuses), payable in eight (8) equal
monthly payments, commencing thirty (30) days after the
termination. In the event of a dispute between Employee
and Employer, Employee shall have no right of set-off
against salary or any other amounts owed to Employee,
unless the dispute is resolved in favor of the Employer, in
which event a right of set-off shall be available to the
Employer.
8. RESTRICTIVE COVENANT. During the
term of this agreement, and for a period of three (3) years
after termination, or expiration, the Employee shall not
compete in the Fax-on-Demand or related Public fax or fax
retrieval business, or any other business in which the
Company or DiversiFax is engaged in any geographical
area in which any of the Company, DiversiFax or their
affiliates operate, and during such periods shall not
interfere with, or disrupt, or attempt to disrupt in any
manner, direct or indirect, the relationship, contractual or
otherwise, between the Employer or any of DiversiFax,
their respective affiliates or subsidiaries and any customer,
supplier, or employee of the Employer or any of
DiversiFax, their respective affiliates or subsidiaries. In
addition to other remedies available to it, the Company and
DiversiFax shall be entitled to seek both temporary and
permanent injunctions and any other rights and remedies it
may have, at law or in equity, to prevent a breach or
contemplated breach by the Employee of any such
covenants or agreements. The Employee further
acknowledges that the restrictions set forth in Sections "8"
and "9" are necessary to protect the legitimate business
interests of the Company and DiversiFax. The Employee
further acknowledges that all of the restrictions in Sections
"8" and "9" are reasonable in all respects, including
duration and scope of activity. The Employee agrees that
the existence of any claim or cause of action by the
Employee against the Company and/or DiversiFax, whether
predicated on this agreement or otherwise, shall not
constitute a defense to the enforcement by the Company
and/or DiversiFax, of the covenants and restrictions set
forth in Sections "8" and "9" of this agreement. The parties
agree that if a Court of competent jurisdiction adjudges any
provision of this agreement, including, without limitation,
Sections "8" and "9", to be invalid or unenforceable, such
Court shall modify such provision so that it is enforceable
to the extent permitted by applicable law.
9. OWNERSHIP AND NONDISCLOSURE
OF INFORMATION. The parties hereto acknowledge that
the Employee will have access to information pertaining to
the business of the Company and DiversiFax which is
secret, confidential and proprietary to the Company and
DiversiFax, including, but not limited to customer data and
proposed and on-going projects (the "Proprietary
Information"). The Employee recognizes and
acknowledges that the Proprietary Information shall be and
remain the sole and exclusive property of the Company and
DiversiFax, as the case may be, and it is a valuable,
special and unique asset of the Company's and/or
DiversiFax's business. During the Employee's employment
and thereafter, the Employee agrees not to disclose any
Proprietary Information to any person, corporation, firm,
partnership or any other entity which is done with the
intention of harming the Company's or DiversiFax's
business and/or reputation. During and after the
Employee's employment, the Employee may disclose such
Proprietary Information if such disclosure is of information
that: (i) is or becomes generally available to the public
other than as a result of a disclosure by the Employee or
(ii) is already known to the Employee on a non-confidential
basis from a source other than the Company or DiversiFax
if such source was not subject to any prohibition against
transmitting said information to the Employee. If the
Employee is requested or required (by oral question,
interrogatories, requests for information or documents,
subpoena, civil investigate demand or similar process) to
disclose any Propriety Information, he will promptly notify
the Company and DiversiFax of such request, or
requirement, so that the Company and/or DiversiFax may
seek an appropriate protective order.
10. INDEMNIFICATION. The Employee
hereby covenants and agrees to indemnify, defend and hold
harmless each of the Company, DiversiFax and, their
respective directors, officers and affiliates from and against
any and all liabilities, actions, damages, fines, judgments,
costs and expenses (including reasonable attorneys' fees
and Court costs) arising out of, or incurred in connection
with, a breach of any representation, warranty or
agreement made hereunder.
11. ASSIGNMENT. This agreement may not be
assigned by the Employee. The Employer and DiversiFax
shall have the right to assign this agreement without prior
notice, or consent, to the Employee.
12. NOTICES. All notices and other
communications hereunder shall be in writing and shall be
deemed given if and when delivered personally or mailed
by overnight courier and a copy of such notice sent
simultaneously by telecopier transmission (if practical) to
the parties at the following addresses (or at such other
address for a party as shall be specified by like notice;
provided that notice of a change of address shall be
effective only upon receipt thereof):
TO THE COMPANY OR DIVERSIFAX:
DiversiFax, Inc.
39
Stringham Avenue
Valley
Stream, New York 11580 Att: Dr.
Irwin A. Horowitz
President
<PAGE>
TO THE EMPLOYEE: Mario
DiNatale
15
Wilderness Drive
Voorhees, N.J. 08043
13. ENTIRE AGREEMENT. This agreement
supersedes any and all prior agreements, oral or written,
between the parties hereto. This agreement contains the
entire agreement of the parties with regard to the subject
matter hereof. This agreement may not be changed,
modified, released, discharged, abandoned, or otherwise
terminated, in whole or in part, except by an instrument in
writing signed by a duly authorized officer of the
Company, DiversiFax, and by the Employee.
14. REPRESENTATION AND WARRANTY
OF EMPLOYEE. The execution, delivery and performance
by the Employee of this agreement, do not and will not,
violate, result in a breach of, or constitute a default under
any other agreement to which the Employee is a party.
15. GOVERNING LAW. The parties hereto
agree that it is their intention and covenant that this
agreement and performance hereunder be governed by the
laws of the State of New York, concerning contracts to be
made and performed wholly within such state.
16. WAIVER OF BREACH. The waiver by a
party of a breach of any provision of this agreement by the
other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
set their hands as of the day and year first above written. -
DIVERSIFAX
INFORMATION SERVICES, INC.:
By:/s/ Irwin A.
Horowitz
DIVERSIFAX,
INC. :
BY:/s/ Irwin A.
Horowitz
/s/ Mario
DiNatale
MARIO
DiNATALE
<PAGE>
EXHIBIT 5
__________, 1996
Board of Directors
DiversiFax, Inc.
39 Stringham Avenue
Valley Stream, New York 11580
Gentlemen:
It is our opinion that the securities being registered
with the Securities and Exchange Commission pursuant to
the Registration Statement of DiversiFax, Inc. on Form S-8
will, when issued, be legally issued, fully paid and
nonassessable.
We consent to the filing of this opinion as an
exhibit to the aforesaid Registration Statement and further
consent to the reference made to us under the caption
"Interests of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
Breslow & Walker
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement of DiversiFax, Inc. and Subsidiaries
on Form S-8 relating to the registration of shares of
common stock pursuant to the employment agreement,
dated March 10, 1995, among DiversiFax Information
Services, Inc., DiversiFax, Inc. and Mario DiNatale, and
amendment thereto dated as of July 17, 1996, of our report
dated March 7, 1996, appearing in the Annual Report on
Form 10-KSB of DiversiFax, Inc. and Subsidiaries for the
year ended November 30, 1995, and the use of our name,
and the statements with respect to us, under the heading
"Experts" in the Prospectus.
HOBERMAN, MILLER & CO., P.C.
July 24, 1996
